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Leone v. Rutt''s Hut Inc.

Decided: May 11, 1959.

JOSEPHINE LEONE, ETC., ET AL., PLAINTIFFS-APPELLANTS,
v.
RUTT'S HUT, INC., ETC., DEFENDANT-RESPONDENT



Price, Sullivan and Foley. The opinion of the court was delivered by Foley, J.A.D.

Foley

This is an appeal from a judgment entered in the Law Division on a jury verdict of "no cause of action."

Josephine Leone, as administratrix ad prosequendum , brought action under N.J.S. 2 A:31-1 charging the wrongful death of Pietro Leone, and, as general administratrix, sought recovery for damage suffered by the decedent during his lifetime. N.J.S. 2 A:15-3. Mary Colden's suit was based on a claim of personal injuries, and that of her husband Steven proceeded per quod.

The accident from which the cause arose occurred on defendant's restaurant premises in Clifton, N.J., at about 7:00 P.M., on October 15, 1954, the date on which the northeasterly section of the United States was visited by Hurricane Hazel. The decedent and the Coldens had driven to defendant's establishment to obtain food and drink. They had parked their automobile in the patrons' parking area in front of a large billboard sign which advertised the restaurant. The men in the party left Mrs. Colden in the car while they went inside and had some food. Upon their return, Colden entered the vehicle through the left door and, as Leone was about to get in on the right side, the billboard fell upon the roof of the car. It was claimed that as a result both Mrs. Colden and Leone suffered personal injuries and that those sustained by Leone eventuated in his death 13 months later.

The sign, of wood construction, weighed about 1,000 pounds and was 12' by 9'10" in size. It was affixed to two 6" x 8" posts set in concrete four or five feet below the ground surface. It was framed, and the back of it was braced and cross-braced.

The case was presented by appellants on two theories. First, it was charged that the sign was negligently maintained in the respect that the uprights had not been replaced despite the fact that they had become rotted. Controverting proof raised a factual issue requiring jury determination

and this phase of the case plays no part in the appeal. Secondly, it was contended that the doctrine of res ipsa loquitur was invoked by the proof. The respondent denied negligence and pleaded affirmatively that the occurrence was an act of God.

Initially the appellant urges that the court erred in submitting to the jury the issue raised by the latter defense. The argument runs that the evidence presented was lacking in sufficient probative value to establish an act of God relieving defendant of responsibility for the consequences of the fallen sign. It is conceded that no objection was made to the portion of the charge in which the defense in question was discussed. But it is urged that this failure to comply with R.R. 4:52-1 should be forgiven because the contention of the claimed deficiency of the proofs was brought to the attention of the court in appellants' motion for judgment made at the close of the case. Cf. Deevy v. Porter , 21 N.J. Super. 278, 282 (App. Div. 1952).

R.R. 4:52-1 explicitly states:

"* * * No party may urge as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of the objection. * * *"

The salutary purpose of this requirement is to bring error to the attention of the trial court at a time when it may be corrected with consequent avoidance of appeal and retrial. In our view, it should not be relaxed except for compelling and cogent reasons, for, as Judge Freund aptly said in Locks Laboratories, Inc. v. Bloomfield Molding Co. , 35 N.J. Super. 422, 429 (App. Div. 1955), the "object of an appeal is to correct errors properly noted below -- not to retry a case." However, the fact ...


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